A BILL to amend the Code of West Virginia, 1931, as amended, by
adding thereto a new article, designated §16-44-1, §16-44-2,
§16-44-3, §16-44-4 and §16-44-5, all relating to access to
nonpublic restrooms by individuals with certain medical
conditions and under specified circumstances; and providing
criminal penalty for violation.

Be it enacted by the Legislature of West Virginia:

That the Code of West Virginia, 1931, as amended, be amended
by adding thereto a new article, designated §16-44-1, §16-44-2,
§16-44-3, §16-44-4 and §16-44-5, all to read as follows:

ARTICLE 16. PUBLIC HEALTH.

ARTICLE 44. RESTROOM ACCESS ACT.

§16-44-1. Short title.

This article shall be known as the Restroom Access Act.

§16-44-2. Definitions.

As used in this article:

(1)“Customer” means a person or individual who is lawfully

on the premises of a retail establishment;

(2) “Eligible medical condition” means any medical condition
that requires immediate access to a toilet facility as determined
by a health care provider. These conditions include, but are not
limited to, Crohn’s disease, ulcerative colitis, any inflammatory
bowel disease or irritable bowel syndrom;

(3) “Retail establishment” means a place of business open to
the general public for the sale of goods or services to an ultimate
consumer. A retail establishment includes, but is not limited to,
a grocery store, mercantile, delicatessen or any place where
merchandise is displayed, held or offered for sale.

(4) “Medical alert restroom access card” means a card provided
by the Foundation for Clinical Research in Inflammatory Bowel
Disease or other nationally recognized organization indicating that
the carrier has an eligible medical condition and needs immediate
access to a toilet facility.

§16-44-3. Customer access to restroom facility; retail
establishment.

(a) A retail establishment which has a toilet facility for its
employees that is not open to the general public shall allow a
customer to use that toilet facility during normal business hours
if the following conditions are met:

(1) The customer requesting the use of the toilet facility
suffers from an eligible medical condition or uses an ostomy
device;

(2) The customer requesting access presents a medical alert
restroom access card which contains language that states the holder
has an eligible medical condition as defined in section two of this
article and requires immediate access to a toilet facility.

(3) Three or more employees of the retail establishment are
working at the time the customer requests use of the employee
toilet facility;

(4) The retail establishment does not normally make a restroom
available to the public;

(5) The employee toilet facility is not located in an area
where providing access would create an obvious health or safety
risk to the customer or an obvious security risk to the retail
establishment; and

(6) A public restroom is not immediately accessible to the
customer.

(b) Nothing in this article shall be construed to require a
retail establishment to open an employee only restroom to the
general public. The restroom shall remain a private, employee only
restroom.

§16-44-4. Limitation of liability.

(a) A retail establishment or an employee of a retail
establishment is not civilly liable for any action or omission in
allowing a customer that has an eligible medical condition to use
an employee toilet facility that is not a public restroom if the
act or omission:

(1) Is not willful or grossly negligent;

(2) Occurs in an area of the retail establishment that is not
accessible to the public; and

(3) Results in an injury or death to the customer, or any
individual other than an employee accompanying the customer.

(b) A retail establishment is not required to make any
physical changes to an employee toilet facility under this article.

§16-44-5. Penalties for violations.

A retail establishment or an employee of a retail
establishment that violates the provisions of this article is
guilty of a misdemeanor and, upon conviction thereof, shall be
fined not more than $100.

NOTE: The purpose of this bill is to provide access to private
employee restrooms for persons with certain eligible medical
conditions.

This article is new; therefore, strike-throughs and
underscoring have been omitted.